SC Probate Lawyer Blog

Even if there was a contest about who was to serve as Personal Representative, once a party has been appointed by the court they have certain rights and duties that they owe all of the interested parties (even those who did not agree with their appointment). Not understanding, or simply choosing to ignore these duties, often gets Personal Representatives in trouble with the law. This post, and many that will follow, will outline the duties of being a P.R. and how to handle them properly.

Immediately upon appointment, the P.R. agrees to accept certain duties. These duties can be found in Article 3, Part 7 of the S.C. Probate Code for those interested in reading them in depth. The first specific duty you will find is 62-3-705 – the duty to inform heirs and devisees of your appointment.DUTY TO INFORM – Within 30 days of your appointment, you should have notified all heirs (those who receive if there is not a will) and devisees (those who are named in the will) of your appointment. South Carolina courts provide you with Form 305PC for this purpose which can be downloaded here. Promptly complete the form, send it to everyone who is an heir or devisee. Then, complete the proof of delivery form to notify the court you have complied with this requirement. This seems easy enough, but this simple task is often handled improperly or ignored, which simply sets the stage for future disputes.

Be aware of the following mistakes:

“I don’t have to inform them, they aren’t in the will.” – The first fatal mistake made by P.R.’s is assuming they only have to send this form to people who will actually be receiving from the estate. This is not true. The purpose of this form is to put everyone on notice, even those who have been disinherited, that the estate has been opened. The opening of the estate triggers numerous deadlines for interested parties to bring an actions including will contests, elective share claims and others. Because of this, everyone who has an interest in this person’s estate is to be notified. In cases where there is no will (intestacy), you will only have one group to notify – all intestate heirs. If; however, there is a will you may have two separate groups. The first group are those listed in the will (whether they are family or not) and the second group are those that would have received it the will was not in place (intestate heirs). Failing to notify someone can cause great delays in the estate. Furthermore, completing the form to say that you have notified someone when in fact you have not is considered perjury.

“I am close with my family and they already know I’m in charge.” – Despite the fact that everyone may already know of your appointment, you still must follow the court process for giving them “official” notice. People often assume that they don’t need to do this because they have already verbally communicated with everyone to let them know. Keep in mind that this form contains information essential for others to contact the court, including the case number and actual date of your appointment. It’s unlikely that these details are mentioned in casual conversation and even if they are, it’s just easier to follow the rules then to make assumptions that will later get you in trouble.

“I’m not sure where this person lives.” – The Probate Courts hear this excuse all the time and unfortunately for the new P.R., they are uninterested in hearing it again. If you have taken on the duty to serve as P.R., it will be essential for you to establish communications with the parties interested in this estate. Very frequently, people who offer this excuse know exactly where the person is, they just hope that this will somehow eliminate the need for keeping them involved. It does not. So, before telling the court that you can’t find an heir or devisee, you must ensure that you have used every available resource to locate them. This includes letters to other interested parties to determine their location, an exhaustive internet search, certified mail sent to their last know address, a public records search, etc. In the end, it is very very rare that an heir actually can not be located. And, if you truly can’t find them you will need an attorney to assist you on their behalf. So, know before you go to court with this excuse that it’s unlikely to work and if it’s in fact true, the court will expect the resources of the estate to be used to resolve the problem.

“I didn’t think I had to let them know because they are minors.” – Even children are entitled to be informed. When dealing with heirs or devisees who are minors, it is appropriate to address information to them through their legal guardians. The same is true of adults who may be incapacitated.

“I sent it in the mail but they must not have gotten it.” – As much as we love to complain about the U.S. postal service, in reality it’s rare that they loose mail. And, it’s not a coincidence that the one piece of mail that gets lost is always the one to the heir or devisee that no one likes. Don’t use this excuse, be a smart P.R. and use certified mail for any heir or devisee who you know is likely to claim that you aren’t doing your job. While the S.C. Code allows for delivery by ordinary mail, most lawyers will always use certified mail in cases where we know we may be asked to prove delivery.

The bottom line is that you can not hide out from the duties you have undertaken, so quickly establishing a line of communication with the heirs and devisees is essential. Having a database or spreadsheet with their current addresses, emails, and phone numbers will make this process easier in the long run. And, if there is someone in this group that you don’t get along with, understand that this means you should communicate with that person more, not less, to ensure you stay out of trouble.

If you’re serving as a P.R. make sure and check out all posts under the category of Personal Representative’s Duties including the following post on completing the estate inventory.

Important Note: Effective January 1, 2014 there were substantial changes in South Carolina’s Probate Code. While we’ve tried to update this blog, please note the date of blog posts and send us an email or call for a consult before relying on information written prior to January 1, 2014. We appreciate your understanding.

Archived Comments

Katie says:October 8, 2010 at 11:30 PMWhat do you do if the PR has not followed these laws? what recourse do you have?

Tiffany Provence says:October 28, 2010 at 3:47 PMKatie,Please see the recent post on removal or restraint of a Personal Representative. You will almost always need legal representation to pursue this.Thanks for the comment – Tiffany

Mary Hopper says:March 31, 2014 at 3:52 PMMy sister was appointed person representative of our mother’s estate. Included in her duties was to be responsible for the checking and savings accounts which are not part of the estate. I would like to see an accounting of these accounts. She is refusing to share this information with me and the other heirs. Am I as an heir legally entitled to know about the accounting for these two accounts.

Tiffany Provence says:March 31, 2014 at 4:38 PMHi Mary, thanks for reading our blog. I’m a little confused by your question. If a checking and savings account are NOT part of the estate, then who do they belong to? Accounts that pass through the estate are the duty of the Personal Representative. Accounts that do not belong to the estate as excluded from the estate because they were held jointly or titled to pass to another individual. If that’s the case, then that individual is the only person with control over those account. Perhaps if you explain why the accounts are not estate assets I can better answer your questions. You can email me at Tiffany@ProvenceMesservy.com if it’s easier.

Tina StJean says:June 9, 2014 at 1:43 AMI have a situation that my brother used a “false” POA to close my Mom’s savings account while she was alive. My sister who is the PR of her estate is aware of this and did not nothing to disclose it. My brother commingled the funds along with a sale of a tractor. Will the judge be interested in what happen the year before her death while she resided in a nursing home, incompetent?

Tiffany Provence says:June 9, 2014 at 10:08 AMWhile the Judge will be interested, he/she will only take action if this is brought to the Court’s attention. This is not the type of information you can raise at the conclusion of the estate or during a hearing on a separate matter. It’s likely that your sister (PR) is the only person who can remedy this situation. If she refuses, then you may have no choice but to seek to have her removed. Please also remember that there are statute of limitations on the length of time you have to raise these issues so don’t let those expire!